No. 86-323 IN THE SUPREME COURTOF THE STATEOF MONTANA 1988

STATE OFMONTANA, Plaintiffand Respondent,

-vsJAMES GONZALES, Defendantand Appellant.

APPEAL FROM: District Court of the FirstJudicialDistrict, In and for theCounty of Lewis and Clark, The Honorable ThomasC. Honzel, Judgepresiding.

COUNSEL OF RECORD: ForAppellant: J. Mayo Ashley, HELENA,Montana

For Respondent: HonorableMike Greely,Attorney General, Helena,Montana Clay R. Smith,Assistant Attorney General, MikeMcGrath, Lewis and Clark CountyAttorney, Helena, Montana Carolyn Clemens,Deputy County Attorney

-- Submitted on Briefs: February 18, 1988 Decided: !.AA/? 

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ClerkMr. Justice R. C. McDonough delivered the Opinion of the Court.
Appellant James Gonzales appeals his conviction for theft in the District Court of the First Judicial District, Lewis and Clark County. We affirm. Mr. Gonzales contends that the District Court erred by admitting evidence obtained in violation of his search and seizure rights under the Fourth Amendment to the United States Constitution, and Articl-e 11, 

### $5 10 and 11, of the Montana Constitution. The asserted violation stems from police placement of florescent detection powder on the exterior of an automobile owned by Mr. Gonzales's brother, Jason Gonzales. The police applied the powder to Jason Gonzales's automobile without first obtaining a warrant. After the powder was placed on the vehicle, police found traces of similar powder at different locations within a Helena home which had been burglarized. The police officers investigating theburglary used the presence of thepowder at the Helena home to obtain a search warrant for Jason Gonzales's home and automobile. The searches of the automobile and home revealed evidence the Stateused to chargeboth Jason and James on countsofburglary and theft. The codefendants moved the District Court to suppress the evidence contending that placement of the powder on the
car constituted an illegal search and seizureof the car,and that evidence obtained as a result of the application of the powder constituted fruitof thepoisonous tree. The District Court denied the motion holding that the application of the powder to the car did not constitute a search or seizure so as to implicate search and seizure rights under the United States Constitution and the Montana Constitution. Following this ruling the codefendantsmoved to sever their trials and the District Court granted the motion. After the separationof the trials, Jason pled guilty to both counts. James proceeded to trial, and the jury returned a verdict convicting him of the count for theft. Mr. Gonzales contends on appeal that the lower court erred by concluding that placement of the powder on the car and the transfer of the powder to his hands did not constitute a search or seizure. The State responds that the District Court correctly concluded that the application of the powder did not constitute a search or seizure,and that even if a search or seizure existed, Mr. Gonzales lacks standing to contest its validity. 

### We affirm because Mr. Gonzales lacks standing on this issue. An individual must have either a property or possessory interest in the automobile searched or seized by the police to assert standing forviolations of the Fourth Amendment to the United States Constitution. Rakas v. Illinois (19781, 439 U.S. 128, 148, 99 S.Ct. 421, 433, 58 L.Ed.2d 387, 404. The same holds true with regard to the Article I1 guarantees of the Montana Constitution. State v. Ribera (1979), 183 Mont. 1, 8-9, 597 P.2d 1164, 1168-69. Thus, the threshold question here is whether Mr. Gonzales can claim either interest inhisbrother's automobile. As part of his defense,Mr. Gonzalesmaintained that he had noproperty interest in the automobile,and thathe never drove it. Therefore, even if the application of the powder constituted an illegal search or seizure of his brother's vehicle, Mr. Gonzales lacks standing to object to theviolation. Inasmuch as Mr. Gonzales cannot assert standing,we decline to address the issue of whether a search or seizure existed as a result of the use of the powder. Affirmed.

We Concur: